Orissa

Debagarh

CC/3/2014

Nalini Nanda, W/o-Debendra Nanda - Complainant(s)

Versus

Divisional Manager, IFFCO - Opp.Party(s)

Sachi Kanta Dash, N.P. Guru & T.Dhal

19 Jul 2016

ORDER

IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DEOGARH.

Shri P.Ch. Mahapatra, Member & Smt. Jayanti Pradhan, Member

Mrs.Nalini Nanda,

W/O. Debendra Nanda,

At- Kendughat, P.S. Reamal,

Dist/-Deogarh.                                                                         ….                   Complainant.

 

                        Versus

 

The Divisional Manager,

IFFCO TOKIO Insurance Co.,

At – Purnabasi Nivas, Budharaja,

P.S. - Sambalpur

Dist.- Sambalpur.                                                                    ….                   Opp.Party.

 

C.D.Case No.22/2014.

DATE OF HEARING; 18.07.2016, DATE OF ORDER: 19.07.2016.

 

For the Complainant   :           Shri Sachikanta Dash, Advocate.

                                                Shri N.P. Guru, Advocate.

                        For the Opp.Party       :           Shri B.K. Purohit, Advocate.

                                                                        Shri R.L. Pradhan, Advocate.

 

SHRI PRATAP CHANDRA MAHAPATRA, MEMBER : - The genus of the case lies in the fact that the complainant’s claim related to loss sustained on the damaged vehicle in an accident was repudiated by OP i.e. IFFCO TOKIO Insurance Compamy (here in after stated as OP Company), who is liable to do so by virtue of the Contract of Insurance.

 

2.         Succistinctly the factual matrix of this case as contended by the complainant, are:

1. Complainant, a permanent resident of Kendughat under Reamal Police Station in the district of Deogarh is the registered owner of the Tractor bearing Regn. No. OD 28 – 0124 which was insured with OP Company vide Policy No.87770534 valid from 22.05.2014 to 21.05.2015.
2. The insured vehicle met an accident on 27.05.2014 at about 5.00 PM near Chikinighati and got damaged, consequential to which complainant informed this fact to OP registering it vide Claim No.1-2SJSKNO deputed a Loss Surveyor who took photographs of the damaged vehicle.
3. As per advise of the OP complainant got repaired the damaged tractor and produced the Bills etc. thereof for settlement of his claim but in his letter No.REP/33893427/14-15 of dated  28.07.2014 the OP Company denied to repay the Claim amount
4. The Vehicle i.e. “ Tractor ” comes under the category of Light Motor Vehicle and in the material time the vehicle was driven by one Dhiren Kumar Dhibar for the purpose of cultivation, who holds a valid driving license bearing No.OR-2120120031952 issued by competent authority

Complainant has concluded his complaint praying after proper hearing both the sides to pass an order directing the OP Company to pay Rs.2,02,540/- with interest and Rs.50,000/- as  compensation for mental pain and agony and  Rs.10,000/- towards cost of litigation to the complainant in the interest of justice.

  

3.         OP Company has contested the allegation and filed the Verified Written Statement wherein contended as follows:

1. Having admitted to have issued one Policy of Insurance bearing No.87770534 in favour of the complainant covering the Own Damages of the Tractor bearing Regn. No.OD28 – 0124 and Trailer bearing No.OD28-0125 for the period from 22.05.2014 to 21.05.2015 OP Company have contended that the case is not maintainable both in the eye of Law and on the available facts as it is not a Consumer Dispute as per provisions of Consumer Protection Act,1986 (for short Act).
2. Upon receipt of the information about the accident of the insured vehicle on 27.05.2014 a Surveyor & Loss Assesor namely Er. Manoj Hota was deputed to assess the loss factor of the vehicle insured who assessed the net loss after deducting the Policy Excess and the Salvage at Rs.1,32,605/-. Also the Surveyor in his report mentioned that as per the Motor Claim Form submitted by the complainant one Dhiren Kumar Dhibar was driving the vehicle at the relevant time of accident who was holding Driving Licence No.OR-2120120031952 issued by the RTO, Jagatsinghpur where in he was not authorized to drive a Transport Vehicle and by allowing to drive the insured vehicle by Shri Dhibar, Complainant has violated the Policy Condition. Accordingly the Surveyor recommended for repudiation of the claim.
3. That, on receipt of the Surveyor’s Report OP Company have repudiated the Claim and have admitted to have communicated this fact to the Complainant vide their letter dated 28.07.2014.
4. That, so far as to the averment made by the complainant in Paras 10,11 & 12  of the complaint petition, OP Company has denied that the said Driver Dhiren Kumar Dhibar was holding a valid License to drive a Tractor, but the Insurance Company denied to pay the claim of the complainant, in connection to which it is submitted that the insured Tractor and Trailor comes with the category of Transport Vehicle and unless the driver holds a Driving License to drive a transport vehicle, the same is not valid. As because the vehicle was a transport vehicle the insured was holding a Goods Carriage Permit to ply the Tractor & Trailor in a public place. But in order to drive the vehicle in a public place the driver should have a valid and effective Driving License which the Driver did not have and the same was within the knowledge of the insured complainant. Hence the claim was repudiated in a speaking letter of repudiation.

           

4.         Heard both the parties and on perusal of documents placed before us during the proceeding of the case by either party we find as follows:

 

1. Complainant is a bonafide customer of the OP Company by entering in to an Insurance Contract vide Policy No. 87770534 wherein it covers the Own Damages of the Tractor bearing Regn. No.OD28 – 0124 and Trailer bearing No.OD28-0125 for the period from 22.05.2014 to 21.05.2015. The said insured vehicle met with an accident on 27.05.2014 and sustained damages which was assessed to Rs.1,32,605/- (Rupees one lakh thirty two thousand six hundred and five) by Surveyor & Loss Assessor Er. Manoj Hota.
2. Complainant has raised a claim of Rs.2,02,540/- expenditure incurred towards repairing of the damaged Tractor bearing Regn.No.OD 28-0124 which has been repudiated by OP Company on the ground of violation of Driver Clause embodied on the Policy Document. And such repudiation have been communicated by the OP Company vide their speaking letter No. letter No.REP/33893427/14-15 of dated  28.07.2014.
3. Complainant states the Driving License issued in favour of his driver Dhirn Kumar Dhibar, who was driving the insured vehicle at the material time, bearing No. OR-2120120031952 issued by competent authority i.e. RTO, Jagatsinghpur authorizing him to drive Tractor – LMV valid till (Non-Transport) 14.03.2032 is a valid license and on the other hand OP Company denies it to be a valid and effective License since the insured vehicle is a Transport vehicle. OP Company inorder to furtheren its case have relied on the Goods Carraige Permit bearing No. C0219808 issued on 1.12.2012.
4. Learned Counsel of OP Company during hearing have cited the case of  New India Assurance Co. Ltd. Vrs. Prabhulal  reported in 1(2008) CPJ 1 (SC) wherein Hon’ble Apex Court have been pleased to hold that the repudiation of the claim by the Insurance Company for violation of the Driver’s Clause of the policy is legal.
5. Also Learned Counsel for OP Company have adduced copy of the Gazette Notification showing tractors using Public Road to be deemed as Transport Vehicle as per Sec.41(4) of the Motor Vehicle Act,1988.

 

5.         In our considered view the instant case rests entirely on the pivotal point whether the insured vehicle is a Transport vehicle or Non transport Vehicle. In order to appreciate the rival contentions, it is useful to refer to certain provisions of the Motor Vehicle Act, 1988 ( for short MV Act) .

a)      Sec.2(44). “tractor” means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller;

b)      Sec2(16). “heavy goods vehicle” means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;

c)      Sec.2(21). “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed [7500] kilograms;

d)      Sec.2(47). “transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;

A bare conjoint reading of Sec2(44) and Sec.2(21) Tractor is a motor vehicle which is not constructed to carry any load, other than equipment used for the purpose of propulsion and is a light motor vehicle where unladen weight is less than equal to 7500Kg. Since it is constructed such it can not carry any load itself, tractor as such can not  be categorized to be  a transport vehicle as defined in Section 2(47). But only when it is attached with the trailer  no longer it remains a light motor vehicle non transport type, it acquires itself characteristic of a goods vehicle and then it transforms to a Transport Vehicle.

6.         Sec.41 of the Indian Motor Vehicle Act,1988  which lays down the procedure for registration of a Motor Vehicle under the title Registration, how to be made: Sub-Section(4) reads as here under:

   “41. Registration, how to be made

Xxxxxx

xxxxxx   

(4) In addition to the other particulars required to be included in the certificate of registration, it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design, construction and use of the motor vehicle, by notification in the Official Gazette, specify.

Xxxxxx

Xxxxxx

            This sub-section confers power upon Central Government to make notification as to design, construction and use of a motor vehicle of a particular type and in the submitted Gazette Notification No.S.O.1248(E) of dated 5^th.November 2004 in the Table provided under Heading Transport Vehicle ~ (vii) Power tiller and Tractors using public road has been categorized as Transport Vehicle while under Heading Non-Transport Vehicle ~ (ix) Agricultural Tractor and Power Tillers has been shelved as Non- Transport Vehicle. This makes it very clear that a tractor fitted with its trailer carrying load on road is a Transport Vehicle and the same tractor not fitted with its trailer  but having fitted with equipment used for the purpose of propulsion  i.e. tiller etc. whether on field or road is a Non-Transport Vehicle.

 

7.         With this finding we now tread back to the averment of the Compalainant in Paragraph 11 i.e. the driver was driving the tractor bearing Regn. No. OD 28 – 0124 for the purpose of cultivation, which means and implies, at the material time the Trailor bearing Regn No. OD28-0125 was not attached to the Tractor. OP Company except denying the averment in Paragraph 11 of the complaint petition have failed to establish that at the material time the Trailor was attached to the Tractor. Neither the Surveyor & Loss Assessor’s Report, who visited to the actual spot of accident,  does not mention  that at the material time the Trailer bearing Registration No. OD 28 – 0125 was ever attached to the Tractor nor any document as to it has been adduced to assail the averment of complainant in Paragraph 11.

 

8.         OP Company have contended to have issued the Policy No. No. 87770534 wherein it covers the Own Damages of the Tractor bearing Regn. No.OD28 – 0124 and Trailer bearing No.OD28-0125 for the period from 22.05.2014 to 21.05.2015 and Issuance of Goods Carriage Permit cannot take over the inherent characteristic of the Tractor  as such i.e.Tractor. This is a very peculiar situation and one has to be skeptical to consider (i) Tractor as such and (ii) Tractor attached with Trailor in the former instant it is Light Motor Vehicle of Non Transport Type and in the later instant It is a Transport Vehicle. This view is substantiated by Issuance of Driving License of LMV Non-Transport Type, bearing No OR-2120120031952 by RTO Jagatsinghpur. Since in the instant case the impugned Motor Vehicle does not fall in to the category of Transport Vehicle application of the ratio of the cited case finds no place. Hence we are of the opinion that OP Company cannot brush off its liability under the issued insurance Policy No. 87770534 and by repudiating the claim of the complainant has caused deficiency in service. As such I order as under:

 

ORDER

The complaint is allowed. The Opposite Party is directed to pay Rs.1, 50,000/-.  (Rupees one lakhs fifty thousands) as Claim Amount, and Rs.10,000/- ( Rupees ten thousand ) as litigation expenses to the Complainant  within 45 ( Forty five) days of receipt of this order failing which the O.P. shall have to pay in addition, an interest of 9% per annum for the first year and @ 15% thereafter on the above amounts to the petitioner  from the date of receipt of this order till actually the amount is paid in course of Law.

            Office is directed to supply the free copies of the order to the parties free of costs receiving acknowledgement of the delivery thereof.

Order is pronounced in the open court today i.e. on 19^TH. Day of July 2016 under my hand and seal of this forum.

             

                              I agree                              

 

                        (Jayanti Pradhan)                                                        (P.C. Mahapatra)

                          MEMBER (W)                                                                MEMBER

 

            Dictated and Corrected by me.

 

 

                              MEMBER